Mader v. Fox

Martin, J., delivered the opinion of the court. This case comes before us on two appeals taken by the defendant. The first is from the dissolution of an injunction, staying proceedings on an order of seizure and sale; the second is from the refusal of the judge to set aside a supplemental petition, and a new order of seizure and sale obtained thereon. 1. The injunction was dissolved on account of the insufficiency of the oath on which it was granted, the parish judge being of opinion that it was not conformable to article 304, of the Code of Practice. In this opinion we concur, and support the judgment. 2. The appellant complains that the supplemental petition, and the new order of seizure and sale which issued thereon, was improperly allowed and granted, and ought not to be sustained: 1st. Because it alters the substance of the plaintiffs’ demand. 2d. That it was not admissible, in praying for summary process. 3d. The new order of seizure and sale was granted in violation of the injunction previously obtained. A supplemental petition, praying for a new order of seizure and sale, is admissible, if it do not alter the plaintiff’s original demand, but is only a continuation of it, embracing instalments not due when the first was filed. 4th. That the defence set up against the first order of seizure and sale remains in full force against the second. 5th. The judgment dissolving the injunction is not executory, no notice of it having been served on the defendant. 6th. The order allowing the supplemental petition tobe filed, and granting the new order-of seizure and sale, was-illegal, being contrary to law and the evidence. It is a sufficient answer to all these grounds of defence to say, that, in our opinion, the supplemental petition does not alter the plaintiff’s demand, but is a continuation of it, embracing instalments of the debt claimed in the original petition, which have become due since it was filed ; that the iniunclion has been dissolved, and all the matters set up as a defence to the first order of seizure and sale having been held unavailable and insufficient, they cannot be opposed to the second or present one. It is, therefore, ordered, adjudged and decreed, that both judgments of the Parish Court be affirmed, with costs.